Thai Court Ruling Risks Constitution Showdown: Southeast Asia

July 16 (Bloomberg) -- Thailand’s political calm hangs in
the balance as Prime Minister Yingluck Shinawatra’s ruling party
decides whether to defy the nation’s highest court and proceed
with an overhaul of a military-influenced constitution.

The Constitutional Court on July 13 called for a referendum
before rewriting the charter ratified after a 2006 coup that
ousted former leader Thaksin Shinawatra, Yingluck’s brother.
Lawmakers “must take responsibility for their next move” if
they proceed with a vote to redraft the constitution, court
spokesman Pimon Thammaphitakphong told reporters.

Moving forward without a nationwide vote could “invite
more explosive protests from the other side,” Somjai
Phagaphasvivat, a political science lecturer at Thammasat
University in Bangkok, said by phone. “Tensions remain high and
this will be the situation for months and years to come.”

The battle over changing the constitution threatens
political stability in Southeast Asia’s second-biggest economy,
where street protests since 2006 have killed more than 100
people and led to takeovers of the airports and central business
district. Thaksin’s allies want to reduce the power of appointed
bodies they say are undermining elected governments to serve the
interest of royalists who backed the coup.

While the eight judges ruled unanimously that a proposal to
create a 99-member assembly to rewrite the constitution didn’t
breach Article 68, which restricts attempts “to overthrow the
democratic regime of government with the King as Head of
State,” they said a complete overhaul would require the consent
of Thailand’s 67 million people.

Referendum Fight

The 2007 constitution “came from a referendum,” Judge
Nurak Mapraneet said in the ruling. “So the public should hold
another referendum to decide whether they want a new draft. If
the parliament wants to amend it, it can do by each article.”

The referendum requirement appears nowhere in Article 291
of the current charter, which grants parliament the right to
change the constitution. Yingluck’s party had proposed changing
that article to allow for a complete constitution rewrite that
would need to be approved in a referendum after it was drafted.

The court’s insistence that a nationwide vote is required
before rewriting the charter amounts to a threat against the
government and parliament because the judiciary is asserting
powers that aren’t granted in the constitution, according to
Kanin Boonsuwan, a law lecturer at Chulalongkorn University who
submitted testimony in favor of the amendment.

“If the government and parliament yield to this threat, it
means this country is not democratic,” Kanin said. “Next time
there is no need to have an election. Just let the court be the
ruling party.”

Court Powers

The court’s determination that it has the authority to
accept petitions directly from the public instead of solely from
the Attorney-General, as occurred in this case, also represents
an expansion of the court’s powers, Kanin said.

Prosecutors declined to forward the petitions to the
Constitutional Court, saying last month that the amendment
process is valid. A committee formed by the previous
administration warned the court last month to undertake a
“strict interpretation” of the law to maintain public
confidence in the judiciary and help prevent violence.

Yingluck campaigned on changing the constitution to make
leaders more accountable to the public before her party’s
majority win in elections a year ago and included plans for a
drafting assembly in a policy statement. Deputy Prime Minister
Chalerm Yoobamrung called the ruling “fair” and said Yingluck
would decide how to proceed with changing the constitution.

Lawsuits, Protests

The opposition Democrat party views the court’s call for a
referendum as binding, according to spokesman Chavanond
Intarakomalyasut. He warned that proceeding with a vote to
rewrite the constitution could lead to more lawsuits and urged
the ruling party to focus more on solving economic problems.

“If they go ahead with it, there’s going to be a problem,
whether it’s a protest or people filing charges against them
again,” Chavanond said by phone. “We don’t want to see that.
Why doesn’t the ruling Pheu Thai party just follow the court’s
direction and not stir any conflict?”

Investors cheered the court ruling because it appeared to
avert an immediate showdown. Thailand’s SET Index gained 1.4
percent to 1,210.29 on July 13, the highest close since May 8,
and rose 0.3 percent today. The baht strengthened 0.5 percent to
31.66 per dollar on July 13, and was unchanged as of 4:47 p.m.
local time, according to data compiled by Bloomberg.

Post-Coup Constitution

In the coup against Thaksin, the country’s 10th power
seizure since absolute monarchy ended in 1932, the generals
discarded the 1997 constitution that mandated a fully elected
parliament. A military-appointed assembly wrote a new version
that granted generals amnesty for the coup, made it easier to
dissolve political parties, and gave judges a role picking
members of a half-appointed Senate and other bodies overseeing
elected officials. That passed in a nationwide vote in late
2007.

The increased responsibilities for judges followed a speech
by King Bhumibol Adulyadej five months before the coup in which
he called on them to resolve a pending constitutional crisis.
Since then, courts have voided an election won by Thaksin’s
party, disbanded two parties linked to him, disqualified about
200 of his allies, sentenced him to jail and seized 46 billion
baht ($1.45 billion) of his wealth.

King Bhumibol, 84, took the throne in 1946 and serves as
head of state. Insulting him can lead to a 15-year jail
sentence. The monarch appoints all the country’s judges,
according to the constitution.

Thaksin Amnesty

Thaksin has lived away from Thailand since fleeing a 2008
jail sentence stemming from charges brought by a military-appointed panel after the coup. His supporters have denounced
the judiciary as biased against the former leader and his
allies, and several bills proposed in parliament earlier this
year called for a broad amnesty for political crimes that would
include the self-exiled billionaire.

The Constitutional Court’s intervention in parliamentary
affairs sets “a very dangerous precedent” that could lead to a
“more explosive crisis” in the future, according to Chris
Baker, a Bangkok-based political analyst and historian who has
co-authored several books on Thailand.

“This whole incident has probably shown that Thaksin
cannot return too soon,” he said. “This is just a small step
in a long process.”